According to several reports published in recent days, Donald Trump’s allies in Congress plan on mounting a state-of-mind defense to prevent his removal by the Senate. In other words, they’re going to concede the obvious: Trump withheld pre-approved military aid to Ukraine while pressuring its officials to investigate Joe Biden’s son and publicly announce they were doing so. The defense will be that Trump intended to further American interests rather than his own. As explained by Republican congressional staffers a few days ago, “President Trump has a deep-seated, genuine, and reasonable skepticism about Ukraine due to its history of pervasive corruption.”
That defense has obvious holes. Such as why Trump would trust a nation for which he has “a deep-seated, genuine, and reasonable skepticism” to conduct an effective anti-corruption investigation. Or why the investigation he was seeking coincidently involved his top political rival. Or why Trump was so concerned about corruption in Ukraine rather than in other nations.
But the biggest problem with a defense focused upon Trump’s state-of-mind is its impact on the witness list. The Federal Rules of Evidence (which will presumably apply in the Senate) permit others to testify as to what Trump said about Ukraine if those statements are offered to show circumstantially what his state of mind was.
But there’s really only one witness who can authoritatively testify as to Donald Trump’s state of mind: Donald Trump. That prospect should scare the bejeezus out of his supporters. There’s a reason why Trump’s lawyers refused to let him be interviewed by Robert Mueller last year:
As Bob Woodward recounts at length in his book Fear, members of Trump’s criminal-defense team fought both Trump and Mueller tooth and nail to keep Trump from being interviewed by the Office of Special Counsel. A practice testimonial session ended with Trump spouting wild, baseless assertions in a rage. Woodward quotes Trump’s outside counsel John Dowd as saying that Trump “just made something up” in response to one question. “That’s his nature.” Woodward also recounts Dowd’s thinking when he argued to Trump that the president was “not really capable” of answering Mueller’s questions face to face. Dowd had “to dress it up as much as possible, to say, it’s not your fault … He could not say what he knew was true: ‘You’re a fucking liar.’ That was the problem.”
Though Mueller backed down and allowed Trump (or, more accurately, Trump’s attorneys) to submit written answers rather than live testimony in response to Mueller’s questions, the House managers (all Democrats) who will try the case in the Senate won’t have to be so accommodating. While the Senate’s impeachment rules permit testimony to be taken by a Senate committee and later presented to the Senate as a whole, “nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate.”
Democrats are actually serious about impeaching and removing Trump, they’ll
insist upon calling him as a hostile witness – on the Senate floor during the
impeachment trial itself.
And yes, they can do that. In criminal trials, prosecutors cannot call a defendant to the stand, nor can they comment to the jury on the defendant’s silence if he chooses not to testify. But Senate impeachments are not criminal trials.
If Trump testifies, most of the remaining portion of the trial will consist of House managers presenting witnesses and documents contradicting his testimony – both of which will be in ample supply.
If subpoenaed, Trump might simply refuse to testify. But because impeachment is civil rather than criminal, House managers would then be permitted to argue to their Senate jurors (and to the voters who are, in many important ways, the real jurors) that his refusal constituted evidence of guilt.
It’s doubtful, however, that the former Apprentice host would pass up what would be the most widely televised event in American political history. But it would be one that would almost certainly transform Trump into a reverse Colonel Nathan Jessup – a witness (rather than a prosecutor) who can’t handle the truth, or testify to it. Under those circumstances, Trump’s acquittal by the Senate would no longer be a sure bet.